TCPA’s Constitutionality Under the First Amendment Poised For Supreme Court Intervention

On December 2, 2019, the United States government submitted a brief to the Supreme Court urging it to deny review of a Ninth Circuit Court of Appeals ruling holding a provision of the Telephone Consumer Protection Act (TCPA) unconstitutional under the First Amendment.  In the case in question, Gallion v. United States, 772 F. App’x. 604 (9th Cir. 2019), the Ninth Circuit held that the TCPA’s exception allowing for autodialed calls if “made solely to collect a debt owed to or guaranteed by the United States,” 42 U.S.C. § 227(b)(1)(A)(iii), is unconstitutional.  The court reasoned that the provision “is a content-based speech regulation” that fails the rigorous constitutional test for restrictions on speech.  The court, however, did not strike down the entirety of the TCPA under the First Amendment, instead opting to sever the unconstitutional provision from the statute.

The Ninth Circuit’s decision stems from a proposed class action lawsuit against Charter Communications Inc. (Charter).  Gallion, the named-plaintiff, accused Charter of using automatic dialing systems (ATDS) to call him and the putative class members without the requisite consent.  In response, Charter filed a Federal Rule of Civil Procedure 12(c) motion for judgment on the pleadings, arguing that the TCPA violates the First Amendment.  Specifically, Charter argued that, because the TCPA prevents all debt collectors—with the expectation of government-backed collectors—from using ATDS to make collection calls, the Act treats speakers differently based on their identity and the content of their speech.

The district court denied Charter’s motion, reasoning that, even though the provision is indeed content based, it nonetheless survives strict scrutiny (the constitutional test applicable to content-based laws) because “no less restrictive alternatives exist” (i.e., it was “narrowly tailored”) to achieve the government’s “compelling . . . interest in protecting privacy.”  Charter appealed.  The Ninth Circuit ultimately affirmed on other grounds, but in doing so, parted ways with the district court and summarily concluded that the government debt exception “fails strict scrutiny, and thus is incompatible with the First Amendment.”  As opposed to invalidating the Act in its entirety, however, the court opted to sever the unconstitutional provision from the remainder of the statute.

Charter filed its petition for writ of certiorari on November 3, 2019, arguing that the Ninth Circuit erred in choosing only to sever the unconstitutional provision.  Charter contends that the Ninth Circuit’s severability ruling is too narrow because it treats only the “exception” as the First Amendment violation, and not the “underlying prohibitions” of the Act.  This holding, according to Charter, “threatens to destabilize vital and long-established First Amendment principles” by “rewriting . . . the statute to remove text that did not itself violate the First Amendment, and fashion[ing] a new law that prohibits more speech than the [A]ct it declared unconstitutional.”

In response, the government agrees that the “First Amendment and severability issues” presented in Charter’s petition are important and “warrant th[e] Court’s review.”  But it nonetheless takes the position that the law is “content-neutral,” and therefore, subject to a less rigorous form of scrutiny that the provision readily survives.  It further urges the Court that the government’s petition in a second case—Barr v. American Ass’n of Political Consultants, Inc. (AAPC), No. 19-631—provides it with a better vehicle for addressing these same issues.  The government thus asks to the Court to grant the petition in AAPC and “hold” Charter’s petition “pending its disposition” of that case.

Although far from certain how the Court will act on the various petitions, both the government and Charter have strongly urged the Court to review the First Amendment issues in play in the TCPA’s restrictions on autodialed calls.  Although the two sides may differ in how they believe the analysis should play out, the fact that both sides agree the Court’s intervention is necessary could mean these issues are ripe for Supreme Court review.  We will be sure to update our readers regarding any actions taken by the Court.

Download PDF